In re H.H. , 2018 Ohio 2636 ( 2018 )

[Cite as In re H.H., 2018-Ohio-2636.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
IN THE MATTER OF: : Case No. 18CA6
:
H.H. : DECISION AND JUDGMENT
: ENTRY
:
: Released: 06/26/18
APPEARANCES:
Joshua D. Price, Pomeroy, Ohio, for Appellant.
Christopher Tenoglia, Pomeroy, Ohio, for Appellee.1
McFarland, J.
{¶1} Appellant, the child’s maternal grandmother, appeals the trial
court’s judgment that (1) modified its prior order that granted her legal
custody of the child, and (2) designated Appellee, the child’s biological
father, the child’s legal guardian and custodial parent. Appellant argues that
the trial court abused its discretion by determining that a change in
circumstances had occurred so as to warrant a modification of the prior
legal-custody order. Appellant recognizes that Appellee has made
substantial improvements to his life since the court entered the legal-custody
order, but she claims that Appellee’s changed circumstances are not relevant
Meigs App. No. 18CA6 2
under the custody-modification statute. Instead, Appellant posits that the
relevant question under the custody-modification statute is whether a change
has occurred in either the custodian’s or the child’s circumstances.
Appellant contends that the evidence fails to support any finding that either
her or the child’s circumstances have changed in a material way since the
time of the court’s original legal-custody order. Although appellant
recognizes that the child has since developed a relationship with Appellee,
she maintains that the mere development of a relationship with a biological
parent does not adequately show a material change in the child’s
circumstances.
{¶2} Based upon the facts present in the case at bar, we do not agree
with Appellant. Rather, we believe that the trial court could have rationally
concluded that Appellee’s release from prison resulted in a change in the
child’s circumstances. Before Appellee’s release from prison, the child and
Appellee did not share any interaction and did not have a relationship.
Appellee’s release from prison has completely changed the nature of the
child’s interaction and relationship with Appellee. Now that Appellee no
longer is in prison, the child has frequent visits with Appellee; before, he had
none. Additionally, Appellee’s release from prison means the child now is
1
Appellee did not file an appellate brief or otherwise enter an appearance in this appeal.
Meigs App. No. 18CA6 3
experiencing the growth of a normal father-child relationship. Thus,
Appellee’s entry into the child’s life, when Appellee was completely absent
before, constitutes a change in the child’s circumstances.
{¶3} Accordingly, we overrule Appellant’s sole assignment of error
and affirm the trial court’s judgment.
I. FACTS
{¶4} Shortly after the child’s birth, Meigs County Job and Family
Services, Children Services Division (the agency), filed a complaint that
alleged the child is a dependent child. The complaint stated that following
the child’s birth, the agency received a report that the child displayed signs
of severe heroin withdrawal. The mother subsequently agreed to place the
child with Appellant until the mother could maintain sobriety. The court
later adjudicated the child dependent and placed the child in Appellant’s
legal custody.
{¶5} Approximately a year and one-half later, appellee filed a pro se
motion that requested the court to modify its order that granted Appellant
legal custody of the child. Appellee claimed that a change in circumstances
had occurred: “I was incarcerated when [the child] was born[.]. His mother
was on heroine [sic] and lost her rights[.]. I just got DNA established and I
want custody of my son.”
Meigs App. No. 18CA6 4
{¶6} The trial court held a hearing to consider Appellee’s motion to
modify the legal-custody order. At the hearing, the parties appeared to agree
that Appellee’s circumstances had changed since the time of the court’s
initial legal-custody order: Appellee no longer is in prison; he is employed;
and he has married. Additionally, the parties agreed that Appellant has
provided the child with appropriate care.
{¶7} However, the parties did not agree that a change in
circumstances had occurred so as to justify modifying the legal-custody
order. Appellant argued that despite the commendable changes that had
occurred in Appellee’s life, neither Appellant nor the child had experienced
a change in circumstances. Appellee, on the other hand, claimed that the
child’s circumstances have changed. Appellee asserted that at the time of
the original custody order, he was not part of the child’s life, but following
his release from prison, the child has become integrated into Appellee’s life.
{¶8} The trial court subsequently granted Appellee’s motion to
modify the prior legal-custody order and designated him the child’s legal
guardian and custodial parent. The court found that Appellee has made
substantial improvements in his life since November 2015, when it awarded
Appellant legal custody of the child. The court further explained that
Appellee’s “relationship has blossomed with [the child]. The establishment
Meigs App. No. 18CA6 5
and development of the father’s relationship with his infant (now toddler)
son, along with all the other facts, cause this Court to find that the father has
met his burden of proof and shown a substantial change of circumstances
* * *.”
II. ASSIGNMENT OF ERROR
{¶9} Appellant timely appealed and raises one assignment of error:
“The trial court’s decision that appellee has established a substantial
change in circumstances is an abuse of discretion and against the
manifest weight of the evidence as the court improperly relies on
changes with father instead of changes with the custodian or the child
as required pursuant to Revised Code 3109.04(E)(1)(a) and Revised
Code 2151.42.”
III. LEGAL ANALYSIS
{¶10} In her sole assignment of error, Appellant contends that the
trial court abused its discretion by modifying the prior decree that granted
her legal custody of the child. In particular, Appellant asserts that the
evidence fails to support a finding that a change in circumstance has
occurred. She acknowledges that since the time of the original decree, the
father has been released from prison, developed a relationship with the child,
obtained stable employment, and married. Appellant claims, however, that
the father’s positive progress in his life is legally insufficient to show that
either her or the child’s circumstances have changed. She further alleges
Meigs App. No. 18CA6 6
that the record does not contain any evidence that the father’s newly-formed
relationship with the child has “affected the child in a material way.”
{¶11} Although Appellee did not file an appellate brief, he argued
during the trial court proceedings that his newly-formed relationship with
the child constitutes a change in the child’s circumstances.2 He noted that
both at the time of the child’s birth and at the time of the original decree that
granted Appellant legal custody of the child, he was incarcerated. Appellee
thus contended that at the time of the original decree, his contact and
relationship with the child were non-existent and the child did not have any
paternal relationship. Now, however, the child sees Appellee on a frequent
and regular basis. Appellee claimed that the child’s experience changed
from a non-existent paternal relationship to the existence of frequent
paternal contact and visitation. Appellee thus asserted that the development
of a father-child relationship constitutes a change in the child’s
circumstances.
A. STANDARD OF REVIEW
2
When an appellee fails to file an appellate brief, App.R. 18(C) authorizes the appellate court to accept an
appellant’s statement of facts and issues as correct, and reverse a trial court’s judgment if the appellant’s
brief “reasonably appears to sustain such action.” In other words, an appellate court may reverse a
judgment based solely on consideration of an appellant’s brief. See Harper v. Neal, 4th Dist. Hocking No.
15CA25, 2016–Ohio–7179, ¶14, Fed. Ins. Co. v. Fredericks, 2nd Dist. Montgomery No. 26230, 2015–
Ohio–694, ¶79; Sites v. Sites, 4th Dist. Lawrence No. 09CA19, 2010–Ohio–2748, ¶13; Sprouse v. Miller,
4th Dist. Lawrence No. 06CA37, 2007–Ohio–4397, fn. 1. In the case at bar, however, we conclude that
appellant’s brief does not support a reversal of the trial court’s judgment.
Meigs App. No. 18CA6 7
{¶12} “A trial court has broad discretion in proceedings involving the
care and custody of children.” In re Mullen, 129 Ohio St.3d 417, 2011–
Ohio–3361, 953 N.E.2d 302, ¶14. Appellate courts thus generally afford the
utmost deference to trial court decisions regarding the modification of a
prior legal custody order issued under R.C. 2151.353(A)(3). In re T.J., 10th
Dist. Franklin No. 10AP-201, 2010-Ohio-4191, 2010 WL 3479872, ¶14; In
re N.F., 10th Dist. Franklin No. 08AP–1038, 2009–Ohio–2986, ¶9; see
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997); Miller
v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988); Wilson v. Farahay,
4th Dist. Adams No. 14CA994, 2015-Ohio-2509, 2015 WL 3886438, ¶15;
In re E.W., 4th Dist. Washington Nos. 10CA18, 10CA19, and 10CA20,
2011–Ohio–2123, ¶18. Consequently, absent an abuse of discretion, we
ordinarily will not disturb a trial court’s decision to modify a legal custody
order. T.J. at ¶14; see Davis, 77 Ohio St.3d at 418. Typically, “[t]he term
‘abuse of discretion’ implies that the trial court’s attitude was unreasonable,
arbitrary, or unconscionable.” In re H.V., 138 Ohio St.3d 408, 2014–Ohio–
812, 7 N.E.3d 1173, ¶8. In Davis, however, the court explained the abuse of
discretion standard that applies in child-custody proceedings as follows:
The standard for abuse of discretion was laid out in the leading
case of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
279, 8 O.O.3d 261, 376 N.E.2d 578, but applied to custody cases
in Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178,
Meigs App. No. 18CA6 8
syllabus:
“Where an award of custody is supported by a substantial
amount of credible and competent evidence, such an award will not be
reversed as being against the weight of the evidence by a reviewing
court. (Trickey v. Trickey [1952], 158 Ohio St. 9, 47 O.O. 481, 106
N.E.2d 772, approved and followed.)”
The reason for this standard of review is that the trial judge has
the best opportunity to view the demeanor, attitude, and credibility of
each witness, something that does not translate well on the written
page. As we stated in Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 80–81, 10 OBR 408, 410–412, 461 N.E.2d 1273, 1276–
1277:
“The underlying rationale of giving deference to the findings of
the trial court rests with the knowledge that the trial judge is best able
to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of
the proffered testimony. * * *
***
“* * * A reviewing court should not reverse a decision simply
because it holds a different opinion concerning the credibility of the
witnesses and evidence submitted before the trial court. A finding of
an error in law is a legitimate ground for reversal, but a difference of
opinion on credibility of witnesses and evidence is not. The
determination of credibility of testimony and evidence must not be
encroached upon by a reviewing tribunal, especially to the extent
where the appellate court relies on unchallenged, excluded evidence in
order to justify its reversal.”
This is even more crucial in a child custody case, where there
may be much evident in the parties’ demeanor and attitude that
does not translate to the record well. Id. at 418-419.
“While we might be ‘perplexed’ by this hybrid abuse-of-discretion-manifest-
weight standard, the Ohio Supreme Court has not overruled, modified, or
clarified the standard set forth in Bechtol or Flickinger.” In re E.S., 4th Dist.
Pickaway No. 17CA16, 2018-Ohio-1902, ¶23, citing In re A.L.P., 4th Dist.
Washington No. 14CA37, 2015-Ohio-1552, at ¶23. We therefore continue
Meigs App. No. 18CA6 9
to apply this standard when reviewing child custody matters that do not
involve the termination of parental rights. E.S. at ¶23.
{¶13} Accordingly, reviewing courts should afford great deference to
trial court child custody decisions. Id. at ¶24; E.W. at ¶19, citing Pater v.
Pater, 63 Ohio St.3d 393, 396, 588 N.E.2d 794 (1992). Additionally,
because child custody issues involve some of the most difficult and
agonizing decisions that trial courts are required to decide, courts must have
wide latitude to consider all of the evidence, and appellate courts should not
disturb a trial court’s judgment absent an abuse of discretion. Davis, 77
Ohio St.3d 418; Bragg v. Hatfield, 152 Ohio App.3d 174, 2003–Ohio–1441,
787 N.E.2d 44 (4th Dist.), ¶24; Hinton v. Hinton, 4th Dist. Washington No.
02CA54, 2003–Ohio–2785, ¶ 9; Ferris v. Ferris, 4th Dist. Meigs No.
02CA4, 2003–Ohio–1284, ¶ 20. As the Ohio Supreme Court explained:
In proceedings involving the custody and welfare of children the
power of the trial court to exercise discretion is peculiarly important. The
knowledge obtained through contact with and observation of the parties
and through independent investigation can not be conveyed to a
reviewing court by printed record. Trickey, 158 Ohio St. at 13.
Thus, this standard of review does not permit us to reverse a trial court’s
decision if we simply disagree with it. We may, however, reverse a trial
court’s custody decision if the court made an error of law, if its decision is
unreasonable, arbitrary, or unconscionable, or if substantial competent and
Meigs App. No. 18CA6 10
credible evidence fails to support it. Davis, 77 Ohio St.3d at 418–419, 421
(explaining “abuse of discretion standard” and stating that courts will not
reverse custody decisions as against the manifest weight of the evidence if
substantial competent and credible evidence supports it, courts must defer to
fact-finder, courts may reverse upon error of law, and trial court has broad
discretion in custody matters).
B. R.C. 2151.42(B)
{¶14} Although trial courts possess broad discretion when reviewing
a motion to modify a legal custody order issued under R.C. 2151.353(A)(3),
R.C. 2151.42(B) defines the legal standard that trial courts must employ.3
The statute provides:
3
We recognize that appellant also asserts that R.C. 3109.04(E)(1)(a) applies. That statute states:
The court shall not modify a prior decree allocating parental rights and responsibilities
for the care of children unless it finds, based on facts that have arisen since the prior decree or that
were unknown to the court at the time of the prior decree, that a change has occurred in the
circumstances of the child, the child’s residential parent, or either of the parents subject to a shared
parenting decree, and that the modification is necessary to serve the best interest of the child. In
applying these standards, the court shall retain the residential parent designated by the prior decree
or the prior shared parenting decree, unless a modification is in the best interest of the child and
one of the following applies:
(i) The residential parent agrees to a change in the residential parent or both parents under
a shared parenting decree agree to a change in the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both parents under a shared
parenting decree, has been integrated into the family of the person seeking to become the
residential parent.
(iii) The harm likely to be caused by a change of environment is outweighed by the
advantages of the change of environment to the child.
R.C. 3109.04(E)(1)(a), like R.C. 2151.42(B), requires a court to find a change in circumstances as
a threshold matter. Unlike R.C. 2151.42(B), however, R.C. 3109.04(E)(1)(a) sets forth three additional
alternative findings that a trial court must make. Moreover, the terms of R.C. 3109.04(E)(1)(a) indicate
that it applies to decrees allocating parental rights and responsibilities, not to orders that award a nonparent
legal custody of an adjudicated abused, neglected, or dependent child.
Meigs App. No. 18CA6 11
A court shall not modify or terminate an order granting legal
custody of a child unless it finds, based on facts that have arisen since
the order was issued or that were unknown to the court at that time,
that a change has occurred in the circumstances of the child or the
person who was granted legal custody, and that modification or
termination of the order is necessary to serve the best interest of the
child.
{¶15} In the case at bar, Appellant has not challenged the trial court’s
best-interest finding. Instead, she limits her argument to the court’s change-
in-circumstances finding. We limit our review accordingly.
C. CHANGE IN CIRCUMSTANCES
{¶16} The change-in-circumstances requirement exists to promote
stability in a child’s life. In re Brayden James, 113 Ohio St.3d 420, 2007–
Ohio–2335, 866 N.E.2d 467, ¶15; e.g., King v. King, 4th Dist. Jackson No.
13CA8, 2014-Ohio-5837, 2014 WL 7478286, ¶46. As the court explained
in Davis:
“The clear intent of [the change-in-circumstances requirement]
is to spare children from a constant tug of war * * *. The statute is an
attempt to provide some stability to the custodial status of the
children, even though [a] parent out of custody may be able to prove
that he or she can provide a better environment.” 77 Ohio St.3d at
418, quoting Wyss v. Wyss, 3 Ohio App.3d 412, 416, 445 N.E.2d 1153(1982); accord In re Brayden James, 113 Ohio St.3d 420, 866 N.E.2d
467, ¶15.
In the case at bar, appellant’s argument before the trial court centered upon the change-in-
circumstances requirement. She did not raise any of the issues outlined in R.C. 3109.04(E)(1)(a)(i) to (iii).
Likewise, on appeal, appellant focuses upon the change-in-circumstances requirement and does not raise
any specific argument regarding R.C. 3019.04(E)(1)(a)(i) to (iii), other than to mention those provisions in
Meigs App. No. 18CA6 12
{¶17} Thus, a parent seeking to disrupt a child’s custodial status must
make a threshold showing of a change in circumstances. “This is a high
standard.” Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007–Ohio–5589, 876
N.E.2d 546, ¶33. Appellate courts must not, however, “make the threshold
for change so high as to prevent a trial judge from modifying custody if the
court finds it necessary for the best interest of the child.” Davis, 77 Ohio
St.3d at 420–421. Accordingly, although the change “need not be
‘substantial,’ “it must be more than slight or inconsequential.” Id. at 417–
418; Bragg at ¶23 (“The change must be significant—something more than
a slight or inconsequential change.”). A change in circumstances must be
one of consequence—one that is substantive and significant—and it must
relate to the child’s welfare. Davis, 77 Ohio St.3d at 418; In re D.M., 8th
Dist. Cuyahoga No. 87723, 2006–Ohio–6191, ¶35, quoting Rohrbaugh v.
Rohrbaugh, 136 Ohio App.3d 599, 604–05, 737 N.E.2d 551 (7th Dist. 2000)
(explaining that the phrase change of circumstances means “‘an event,
occurrence, or situation which has a material * * * effect upon a child’”);
Beaver v. Beaver, 143 Ohio App.3d 1, 10, 757 N.E.2d 41 (4th Dist. 2001),
quoting Holtzclaw v. Holtzclaw, Clermont App. No. CA92–04–036 (Dec.
14, 1992) (“ ‘Implicit in the definition of changed circumstances is that the
passing. For this reason, we presume that R.C. 2151.42(B) sets forth the applicable standard and do not
address any of the alternative findings that 3109.04(E)(1)(a)(i) to (iii) require.
Meigs App. No. 18CA6 13
change must relate to the welfare of the child.’ ”). Additionally,
the change in circumstances must be based upon facts that have arisen since
the prior custody order or that were unknown at the time. R.C.
2151.42(B); Brammer v. Brammer, 194 Ohio App.3d 240, 2011–Ohio–2610,
955 N.E.2d 453, ¶17 (3rd Dist.).
{¶18} Furthermore, “[i]n determining whether a change in
circumstances has occurred so as to warrant a change in custody, a trial
judge, as the trier of fact, must be given wide latitude to consider all issues
which support such a change.” Davis, paragraph two of the syllabus.
Consequently, “[w]e review the trial court’s determination regarding a
change of circumstances for an abuse of discretion.” In re L.M., 2nd Dist.
Greene No. 2010-CA-76, 2011-Ohio-3285, ¶15, citing In re A.N., 2nd Dist.
Greene Nos. 2010 CA 83, 2011-CA-7, 2011–Ohio–2422, ¶21; accord Cutlip
v. Gizzo, 9th Dist. Summit No. 28535, 2018-Ohio-647, 2018 WL 1004373,
¶10; In re A.S., 2nd Dist. Montgomery No. 27156, 2016-Ohio-7622, 2016
WL 6575847, ¶12.
{¶19} The Ohio Supreme Court’s decision in James informs our
decision in this case. In James, the court held that improvements or changes
in a noncustodial parent’s life do not ordinarily satisfy the change-in-
circumstance requirement. In that case, the trial court adjudicated the child
Meigs App. No. 18CA6 14
abused and dependent, and the children services agency developed a case
plan for the parents. The parents later stipulated to placing the child in the
grandparents’ legal custody. The court permitted the parents to have
supervised visits with the child. Nearly three years later, the parents filed a
motion to obtain custody of the child. The trial court granted the parents’
motion. On appeal, the appellate court affirmed and held that the change-in-
circumstances requirement is unconstitutional when applied to a parent
seeking custody of a child from a nonparent with legal custody.
{¶20} The Ohio Supreme Court reversed. The court did not agree
that the change-in-circumstances requirement violates a parent’s
fundamental rights. The court noted that the trial court had adjudicated the
child abused and dependent, the parents voluntarily relinquished custody of
the child, and the parents retained residual parental rights, privileges, and
responsibilities. The court pointed out that an abuse, dependency, or neglect
adjudication constitutes an implicit finding that “the child’s custodial and/or
noncustodial parents are unsuitable.” Id. at ¶22. The court thus found its
prior cases exalting a suitable parent’s paramount right to custody
inapposite. The court therefore found no constitutional impediment to
requiring a noncustodial parent to establish a change in circumstances before
a trial court may modify an order granting legal custody to a nonparent.
Meigs App. No. 18CA6 15
{¶21} Moreover, the court found the facts legally insufficient to
establish that a change in the child’s or custodians’ circumstances had
occurred. Although the majority’s decision fails to reveal the facts to
support its determination that a change in circumstances had not occurred,
one of the dissenting opinions, as well as the lower courts’ decisions, reveal
the underlying facts. In her dissent, Justice Lundberg Stratton pointed out
that the parents “diligently” worked on their case plan, “regularly visited”
the child, paid child support, “changed the circumstances that had originally
caused the state to remove their child from them,” and “did everything the
court asked of them.” Id. at ¶40 and 41. In the appeal after remand, the
court determined that based upon the Ohio Supreme Court’s reversal, the
noncustodial parents’ “commendable progress” in attending counseling
sessions and completing various parenting programs, “was not pertinent to a
‘change in circumstances’ determination.” In re B.J., 1st Dist. Hamilton No.
C–081261, 2009–Ohio–6485, ¶19; In re James, 163 Ohio App.3d 442,
2005–Ohio–4847, 839 N.E.2d 39 (1st Dist. 2005), ¶3. Neither was the birth
of a new sibling to the noncustodial parent, nor the noncustodial parent’s
purchase of a home and demonstration of stability. James, 163 Ohio App.3d
at ¶66. In essence, the Ohio Supreme Court’s James decision indicates that
a noncustodial parent previously deemed unsuitable cannot establish a
Meigs App. No. 18CA6 16
change in circumstances sufficient to modify a prior custody order simply by
showing that the parent now is suitable. See Brayden James, 113 Ohio St.3d
420, at ¶42 (Lundberg Stratton, J., dissenting); In re L.M., 2nd Dist. Greene
No. 2010-CA-76, 2011-Ohio-3285, 2011 WL 2584195, ¶20 (stating that
“[t]he fact that a parent implicitly found unsuitable by an abuse/dependent
adjudication, may now be a suitable parent does not necessarily entitle her to
regain legal custody”).
{¶22} In the case at bar, we believe that the evidence that Appellee
presented is similar to the evidence that the parents presented in James and
that the Ohio Supreme Court determined is insufficient, as a matter of law,
to constitute a change in circumstances. Just as the parents in James,
Appellee made commendable progress since the court granted legal custody
to Appellant. Appellee no longer is in jail, obtained stable employment, and
married.
{¶23} Significantly, however, unlike the parents in James, Appellee
did not share a pre-existing relationship with his child. In James, the parents
had a pre-existing, established relationship with their child. Additionally,
the parents had regular visitation with their child while he was in the
grandparents’ legal custody. The facts in James do not indicate that after the
court granted the grandparents legal custody, the child experienced any
Meigs App. No. 18CA6 17
material change in the nature of his relationship with his biological parents.
In this case, by contrast, the child experienced a drastic change in the nature
of his relationship with Appellee—his biological father—since the date the
court granted Appellant legal custody. Unlike the parents in James who had
a pre-existing relationship with their child, here, Appellee did not have any
relationship at all with his child until Appellee’s September 2016 release
from prison. Thus, from the time of the child’s July 2015 birth through
September 2016, the child did not have any relationship with Appellee, his
biological father. After Appellee’s release from prison, the child began to
experience frequent visitation with Appellee. The nature of the child’s
relationship with Appellee changed from completely non-existent to
frequent-contact. In contrast, in James, the evidence does not indicate that
the child experienced any change in the nature of his biological relationships
or in the frequency of his visits.
{¶24} We believe that the foregoing facts distinguish this case from
James and show that child here has experienced a change in circumstances.
When the child was born, Appellee was in prison and did not have even the
slightest relationship with the child. Instead, the child’s mother relinquished
custody to the maternal grandmother. Since that time, the child has
experienced the growth of an entirely new relationship with Appellee and
Meigs App. No. 18CA6 18
Appellee’s extended family. Unlike the situation in James where the
familial relationship remained on a continuum, in this case, the familial
relationship between the father and the child did not follow a continuous line
from birth to present. Instead, Appellee was not part of the child’s life until
his release from prison. We do not believe that the trial court abused its
discretion by determining that under the circumstances present in the case at
bar, the complete exclusion of Appellee from the child’s life, followed by
his inclusion, constitutes a change-in-circumstances within the meaning of
R.C. 215.42(B).
{¶25} We recognize Appellant’s argument that the record does not
contain any evidence to show that Appellee’s entry into the child’s life has
actually affected the child in a material way. However, we believe that the
trial court could have rationally concluded that the complete absence of a
biological parent from a child’s life to the integration of a biological parent
into the child’s life would have a profound effect upon a child. Indeed, it
seems there is little that could affect a child more than the relationship, or
lack thereof, that a child shares with a biological parent. See generally In re
P.A.R., 4th Dist. Scioto No. 13CA3550, 2014-Ohio-802, 2014 WL 861529,
¶ 27 (noting that “a nonresidential parent’s increased visitation with a child
Meigs App. No. 18CA6 19
who is in a nonparent’s custody” might, in a given case, constitute a change
in circumstances).
{¶26} Consequently, we do not agree with Appellant that the trial
court abused its discretion by finding that a change in circumstances has
occurred.
IV. CONCLUSION
{¶27} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Meigs App. No. 18CA6 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.